One Man Now Rules Ferguson

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”Read More.

It’s more than a little eerie to hear that authorities have declared a state of emergency in Ferguson, Missouri. The state of emergency, aka the state of siege, casts a long shadow over the history of government attempts to produce and maintain public order. States of emergency are the favored tool of dictators and would-be dictators who want to suspend regular, constitutional procedures. Their invocation often heralds a crackdown on civil liberties.

In the case of St. Louis County, the reality is more complicated. The declared state of emergency does in fact give the elected county executive, Steve Stenger, almost absolute authority to declare a curfew and thereby order arrests and end protests.

So far, no curfew has been announced, and it appears that the state of emergency has been invoked mostly to put the county police in charge in Ferguson. Given the record of the Ferguson police, that may well be a good idea.

Nevertheless the structure of an emergency -- and the closely related idea of an exception to the normal rules -- may also send the wrong message to police, protesters and the public, who may be wrongly led to believe that the right to assembly and free speech has been suspended.

What Stenger was doing, technically, when he declared the state of emergency Monday was invoking his power to activate the St. Louis County Emergency Operations Plan, promulgated unilaterally in 2013 by a previous county executive through authority he claimed to have under state law. The county has about 1 million people, and includes a remarkable 60 municipal police departments and 20 municipal fire departments. (Why there are three times more police departments than fire departments in the same county is a story in itself.)

The emergency plan is by no means designed to cover situations of protest. The general intent of the plan, if you read through it, is primarily to address natural disasters. When there’s a flood or a tornado, it makes good sense to centralize emergency response authority. Secondarily, the plan focuses on what it calls “technological hazards,” including terrorist attack. Anyone who remembers New York City in days and hours after the Sept. 11 attacks can easily recall the confusion of responsibilities and jurisdictions that hampered crisis response.

What makes this week's protests qualify as an emergency? Well, the list of “technological hazards” does include “civil disorders” -- and there doesn’t seem to be anyone other than the county executive with the legal authority to declare that the current protests count as civil disorder. For myself, I’d be a little skeptical about whether these mostly nonviolent protests count as civil disorder sufficient to invoke the emergency. But there’s no time now for a court challenge -- in any case, a court might well say that what counts as a civil disorder is up to the county executive.

So what happens when the state of emergency is declared? Invoking the plan triggers a reorganization of the command structure for a whole range of “emergency support functions.” It places overall responsibility under the authority of the St. Louis County Police Department -- and the county executive. One key sentence reads: “The St. Louis County Police Department Office of Emergency Management, under the guidance and direction of the St. Louis County Executive and/or the Chief of Police, develops and issues operations orders to activate individual ESFs based on the scope and magnitude of the threat or incident.”

That puts the St. Louis County Police Department, not the Ferguson municipal police, in charge in Ferguson.

But that’s not all. The plan also gives the county executive the authority to “act as an agent of the governor of Missouri.” In that capacity, he has nearly dictatorial authority. He can “exercise all powers necessary to assure the safety and protection of the civilian population,” including establishing a curfew, shutting down roads, closing businesses and so forth.

Legally speaking, this is a classic state of emergency: a suspension of ordinary legal processes and norms. The county executive and the police can’t formally suspend free speech. But if they were to establish a curfew and empty the streets, then in practice they could arrest anyone out-of-doors. That means they could end the protests and curtail free speech and free assembly. A court might then be willing to override them -- but filing a challenge would take time, and in the meantime, the police would have free rein.

To be fair to the county executive, it probably makes sense for the Ferguson municipal police not to be in charge of handling protests that grew out of their misconduct. The state of emergency may simply be a mechanism to take matters out of their hands. In that case, the objective is reasonable, even if the county executive is pushing the outer bounds of the order establishing the emergency plan.

But a state of emergency isn’t something to be taken lightly. Under Hosni Mubarak, Egypt was under a state of emergency for 30 years. Although India is a democracy, Indira Gandhi governed under a state of emergency for 21 months, during which arbitrary arrests and even torture became normalized.

No one expects Ferguson’s state of emergency to last. But the message of an emergency is that the normal rules are off the table. That’s exactly the wrong message to send police confronted with protestors. The Constitution doesn’t need suspending in Ferguson. The county executive and police should try to call off the state of emergency as soon as possible.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”Read more